Sole...on Ice

My screenwriter friend Pam Brady once declared that if you can stick “on Ice” in a title, like those brilliant folks at Disney, it immediately transforms it into something bigger, better—an outright can’t-miss Event. I mean, who would rush to see a bunch of Disney characters prancing around the Verizon Center in flat shoes? But you put Snow White in skates and voila! Thousands rush to buy tickets. (Pam was really pushing me to call my book “Supreme Conflict…on Ice,” or something like that, and I have to concede it may have boosted sales.)

Anyway, I’ve warmed up to the mysterious magnifying effect of “on Ice.” It’s a handy way of signaling that a routine thing is, in fact, Something Really Big. So with thanks to Pam, let’s just think of Sole v. Wyner, yesterday’s nude-protest-on-the-beach decision, as “Sole…on Ice.”

What reads like a technical case involving a dispute over attorneys’ fees is, in fact, a Big Deal. It’s a perfect example of what John Roberts is trying to achieve in his efforts to move the Court toward consensus. The case ended up 9-0, but only after some of the Justices put aside their differing views on the law. Some would have been inclined to write more broadly—or offer up a concurrence. But they instead joined together to issue the narrowest of rulings.

Roberts has talked in detail and at length about how he wants the Court to operate with more consensus and unanimity. When I interviewed him last fall, he explained that unanimous—or nearly unanimous—decisions were easier for the lower courts and the litigants to understand. He said they also led to greater stability in the law, because they probably had more staying power than a 5-4 decision, and were better for the Court as an institution.

“The more justices that can agree on a particular decision, the more likely it is to be decided on a narrow basis, and I think that’s a good thing when you’re talking about the development of the law, that you proceed as cautiously as possible,” Roberts said.

There’s been a lot of confusion, though, about what Roberts really means by consensus—especially since we’ve seen the most controversial cases regularly splitting the Court 5-4. Those decisions have prompted some to label Roberts’ efforts an outright failure. (You can almost see these people ruefully shaking their heads at his “naiveté” when they write these stories.) Others have seemed disappointed, as if they expected Roberts to compromise his own conservative views to avoid the dreaded 5-4s.

But that’s getting close to the classic straw-man argument: You misstate someone’s position, then go on to talk about how off base the person was. (It’s something you see a lot of in Washington, believe me.)

Roberts isn’t talking about compromising principles to reach a unanimous decision. He isn’t suggesting justices change their positions solely for the good of the institution—certainly he wouldn’t do that (he thinks his views on the law ARE for the good of the institution). When Roberts goes on about consensus, he’s talking about cases where the justices could put aside whatever bolder views they have on the law to reach a more narrow result—to look first for agreement and common ground.

“It really is a case-by-case consideration,” Roberts explained back in November. “In some areas, I think, again, the more cautious approach, the narrower approach, the approach that can get as many justices as possible to sign on to it is the preferred one.”

It’s just that there may not be a whole lot of page-one cases where that’s possible.

Supreme Court lawyer Roy Englert, a keen observer of the Court, put it this way: “If you take it case by case and ask how you possibly could have written more narrowly, you don’t come up with a lot of places where you could have. Sometimes, when you do your best to figure out if there’s a narrow ground for agreement, you find there isn’t. You have stark disagreement. And that’s the time you just go ahead--everyone adheres to his or her principles, and you release the opinion.”

But there are some cases where the Court—when the justices work at it--can find common ground. And that takes us to Sole v. Wyner. Or as I think we all can now call it, Sole…on Ice.

It's a case where the Court might well have had a bare (no pun intended) majority for a broader rule. But it achieved unanimity by deciding only the case before it, leaving for another day what the outcome might be on similar, but different, facts.

For a dispute over attorneys’ fees, the case had spectacular facts. Florida artist Toni Anne Wyner wanted to organize a crowd into a peace symbol on a public beach. The problem? The crowd was gong to be naked when it formed the peace sign--to symbolize, as Wyner told Tony Mauro in the Legal Times, “the vulnerability of all humans.”

Florida officials didn’t much like the idea, because it didn’t comply with the state’s “Bathing Suit Rule.” So Wyner sued and got an initial victory: a preliminary injunction blocking state officials from interfering with her nude protest, so long as it was behind a screen to shield beachgoers who happened to believe in the “Bathing Suit Rule.”

Wyner also sought a permanent injunction so she could put on another nude production the following year, but to that, the judge said “enough.” There had been a breakdown in “peace” during the protest--some of the nudists stepped outside the screen and went swimming on the public beach. The judge said no more—and no to the permanent injunction.

But the judge awarded Wyner attorneys’ fees to cover her successful preliminary injunction. State officials protested, setting up the Supreme Court showdown. Florida—supported by the Bush Administration—argued that the fees were inappropriate because Wyner wasn’t a “prevailing party” in the case. Sure she’d won an early round, but she lost at the final judgment stage when the judge ruled against the permanent injunction and granted summary judgment to the state.

But Florida and the Bush administration wanted to go further than the narrow facts of Wyner's case. They pushed for a broad rule that would deny fees in any case where the party didn't get a final judgment—even in cases that were resolved at the preliminary stage and never played themselves out to the end.

That prompted an outcry from a number of public interest groups, which filed court papers on Wyner’s side. They said a broad rule denying fees would discourage them from pursuing cases to vindicate key constitutional rights (such as lawsuits to put on marches or those challenging elections procedures, religious displays or prayers at graduation—sometimes those cases are quickly resolved by a preliminary injunction, and that ends the dispute). Since many of those cases never reach a final judgment, under a broader rule, the lawyers wouldn’t be able to recover their fees.

Some of the conservative justices would have embraced that view. But at argument, Roberts was clearly looking for the middle ground (a place Kennedy also seemed to appreciate), asking administration lawyer Patricia Millet at one point: “Are you on the all or nothing team this morning?”

He assigned Justice Ginsburg the decision, and she produced a narrow, careful opinion. She wrote that the Court specifically was not reaching the broader question.

“We express no view on whether, in the absence of a final decision on the merits of a claim for permanent injunctive relief, success in gaining a preliminary injunction may sometimes warrant an award of counsel fees,” Ginsburg wrote for the unanimous court. “We decide only that a plaintiff who gains a preliminary injunction does not qualify for an award of counsel fees (under the law) if the merits of the case are ultimately decided against her.”

It was 9-0. No one wrote separate concurring opinions, advocating the broader rule. The Court saved the bigger question for the next case, one that squarely presents the facts, and it issued a clear rule to govern cases like Wyner’s.

Strike one up for consensus, narrowness and incremental decision-making. Sole…on Ice.

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